The opinion of the court was delivered by: Skretny, District Judge.
Now before this Court is defendant The Crosby Group, Inc.'s
("Crosby") motion to dismiss the Complaint pursuant to Fed.R.
Civ.P. 12(b)(6) or in the alternative for summary judgment
pursuant to Fed.R.Civ.P. 56 ("motion") as to it.*fn1 Plaintiffs
Michael Witter and Mary Witter (collectively "plaintiffs") have
filed an opposition to Crosby's motion which includes a motion to
strike the affidavit of James Christopher.
Because both parties have submitted affidavits and other
statements beyond the pleadings which this Court has considered
in ruling on the motion, pursuant to Fed.R. Civ.P. 12(b) this
Court shall treat the motion as one for summary judgment under
This Court has diversity jurisdiction over this lawsuit
pursuant to 28 U.S.C. § 1332 and, therefore, New York law
supplies the substantive rule of decision for this Court's
According to the Complaint, plaintiffs allege that Crosby
negligently installed and maintained an overhead trolley crane
which subsequently malfunctioned while plaintiff Michael Witter
operated it, causing him severe injury. In Counts Three and Four
of the Complaint, plaintiffs seek six million dollars damages for
Crosby's negligent installation and maintenance of the crane and
also damages against Crosby in strict products liability,
respectively. In Count Five of the Complaint, plaintiff Mary
Witter seeks one million dollars damages in consortium.
Moving to dismiss the Complaint as to it, Crosby denies any
liability to plaintiffs for negligent installation or maintenance
of the crane and, contending that it neither manufactured the
crane itself nor any parts attached to it, also denies any strict
In support of its motion, Crosby has submitted a Notice of
Motion; statement of material facts not in dispute ("Crosby
fact"); a memorandum of law in support ("Crosby memo."); the
affidavit of James Christopher ("Christopher"); the affidavit of
William A. Gardner ("Gardner"); and the affidavit of Carl H.
Berry ("Berry"). Crosby also has filed a reply brief ("Reply").
In support of its opposition to the motion,*fn2 plaintiffs
have filed a Notice of Cross-Motion with exhibits; a statement of
material facts in dispute ("pl. fact"); a memorandum of law ("pl.
memo."); the affidavit of Michael Witter ("Witter"); and the
affidavit of James Scime, Esq. ("Scime").
This Court has considered all these submissions, as well as
oral argument held on March 5, 1991.
Conclusion: For the reasons set forth below, this Court grants
Crosby's motion in its entirety and dismisses plaintiffs' lawsuit
as against Crosby.
The following material facts are not in dispute.
Franbilt's plant is located at 210 Market Street, Lockport, New
York. ("Market Street Building.") Appended to the inside of the
Market Street Building is an overhead trolley crane ("crane")
used to lift and move heavy items within the building. (See,
Gardner, ¶ 5; Berry, ¶ 6;). ...